When ICE Tries to Transfer a Detained Person

Why ICE Transfers Detainees

ICE moves people between detention facilities for a range of reasons. Capacity is one. When a local facility becomes crowded, ICE moves people to facilities with more space, even if those facilities are in other states and far from a person's family and lawyers.

Operational decisions are another. ICE has agreements with county jails and private detention facilities across the country, and it uses that network to house people wherever it is convenient for the agency. The convenience of the detained person, their family, or their legal counsel is not a factor ICE is required to consider.

Transfers also happen as a step toward removal. As a final order approaches, ICE may move a person to a facility closer to an airport or to a staging facility as a step toward carrying out a removal order.

None of this requires advance notice to the family or the lawyer. A transfer can happen overnight.

What a Transfer Does to a Legal Case

A transfer out of New Jersey can unravel months of legal work in a matter of days.

The immigration case may move. Immigration court jurisdiction is generally tied to where the person is held. If someone is transferred to another state, their case may transfer with them, to a different court with different judges and potentially a much longer wait for hearing dates.

The habeas case may need to be refiled or continued. A federal habeas petition is filed in the district where the detained person is held. If a transfer happens after the petition is filed, the case may need to be addressed in the new district. Courts handle this in different ways, and the procedures vary.

The attorney may not be able to continue. A lawyer admitted to practice in New Jersey who is representing someone detained here may not be admitted in the state where the person ends up. Starting over with new counsel in a new place, or going through a temporary admission process, takes time that no one has in a detention case.

Evidence and witnesses become harder to reach. A bond hearing or habeas case depends on records and letters from people in the community near the original place of detention. Once the detained person is hundreds of miles away, gathering and presenting that evidence becomes significantly harder.

The federal circuit changes. Federal law on immigration detention is not the same in every circuit. The Third Circuit, which covers New Jersey, has developed law on habeas and prolonged detention that may be more favorable than the law applied in some other circuits. A transfer can put a case in front of judges applying different law, and the outcome of a habeas petition can depend in part on which circuit hears it.

Family contact breaks down. A family in New Jersey cannot easily visit a detention center in another state. Phone contact through detention systems is difficult enough as it is. A transfer cuts off the practical support network that helps a detained person get through a long case.

How Emergency Federal Filings Can Stop a Transfer

A federal habeas corpus petition under 28 U.S.C. 2241 is the primary vehicle for challenging immigration detention in federal court. When a transfer is also a threat, the petition is accompanied by an emergency motion for a temporary restraining order.

A temporary restraining order is an order from a federal judge directing the government to hold off on a specific action while the court examines whether that action is lawful. In a detention context, that means an order telling ICE not to move the person out of the district while the habeas petition is pending.

A TRO motion in a habeas case asks the court to rule on an emergency basis, often within hours or a day. The standard for a TRO is whether the moving party is likely to succeed on the merits of the underlying case, whether they face irreparable harm without the order, whether the balance of harms favors granting it, and whether the public interest supports it.

In a transfer case, irreparable harm is often the clearest factor. Once someone is moved to another state, the consequences described above are immediate and very hard to undo. Courts recognize that. Motions that explain those specific consequences in concrete terms give a federal judge something to work with.

The TRO motion is filed at the same time as the habeas petition, or as close to simultaneously as possible. The two filings work together: the habeas petition explains why the detention itself is unlawful, and the TRO motion explains why the court should act immediately to prevent a transfer while the habeas petition is resolved.

For background on how habeas corpus works in immigration cases, see our main page on habeas corpus and immigration detention.

Why Filing Before a Transfer Is the Only Real Option

A TRO can only prevent a transfer that has not yet happened. There is no simple mechanism in federal court to require ICE to return someone after they have already been moved to a different state and placed in a facility there. Courts can order the government to produce a person, but in practice, once someone is in another state, the path is to proceed in that district, not to undo what happened.

This is why transfers are so damaging, and why the first call matters so much. Once an attorney is on the case and the habeas petition is in front of a federal judge, the TRO can be requested. A judge who has the petition before them can act on an emergency motion. A judge who has not been asked cannot do anything.

Families often wait to call a lawyer until after a transfer because they assume there is nothing to be done. The opposite is true. The window to prevent a transfer is narrow, but it is real. It closes the moment the government moves.

Signs a Transfer May Be Coming

Families often notice the following before a transfer happens:

• Phone contact with the detained person becomes harder or suddenly stops.
• The detained person mentions that others around them have been moved recently.
• The facility will not confirm that the person is still there when you call.
• The ICE Online Detainee Locator shows no record or shows a different facility.
• An immigration hearing has been rescheduled or transferred to another state.
• ICE has indicated that a final removal order is being processed.

If you are still trying to locate someone, start with the steps on our detained by ICE page. If you already know where they are and want to prevent a move, call immediately.

Frequently Asked Questions

Can ICE move someone to another state without warning?

Yes. ICE can transfer detainees between facilities for operational reasons, and transfers can happen with little or no advance notice. Family members and even lawyers sometimes learn about a transfer after it has already occurred.

What does a transfer do to the legal case?

It can complicate every part of it. The immigration case may be transferred to a court in a different state. A habeas petition filed in New Jersey may need to be continued or refiled in a different district. The attorney of record may not be admitted to practice in the new state. Evidence and witnesses become harder to reach. The case may land in a different federal circuit with different law.

Can a court order ICE not to transfer someone?

A federal judge can issue a temporary restraining order barring transfer while a habeas petition is pending. This is filed as an emergency motion alongside the habeas petition. Whether the court grants it depends on the facts and the judge.

Does filing a habeas petition automatically stop a transfer?

No. Filing alone does not stop a transfer. The petition must include an emergency motion that specifically asks the court to bar transfer, and the court must act on it before the transfer happens. This is why timing is critical.

What if someone has already been transferred?

A transfer does not end the options, but it changes them. The habeas petition may need to be refiled or continued in the new district. The immigration case may need to be transferred. The sooner an attorney is involved after a transfer, the faster those steps can begin.

How do I know if a transfer is coming?

Transfers often happen without advance notice to the family. Signs that one may be coming: a sudden change in the facility where the person is held, comments from staff about a move, or an unexplained gap in phone contact. Call us immediately if any of these happen.

Working With Our Firm

Harry Asatrian handles emergency habeas filings and TRO motions in the United States District Court for the District of New Jersey. If a transfer is threatened or has already happened, call (973) 735-2716.

Our office is at 72 South Maple Avenue, 1st Floor, Ridgewood, NJ 07450. For background, see our blog posts on habeas corpus and ICE detention and on what to do when there is no bond hearing.